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August 12, 2003


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


This case exemplifies the proverbial expression "Don't make a federal case out of it." A comedy of litigation errors raises the question whether this Court is now in a position to honor that bit of American folk wisdom. Plaintiffs have made, and defendant opposed, a motion to voluntarily dismiss their case without prejudice pursuant to Fed.R. Civ. P. 41(a)(2); defendant cross-moves to dismiss with prejudice; and as will be seen. a motion to remand the case to state court, made rather long ago in a court not too far away, apparently remains pending.


Plaintiff Maria Blanco brought this personal injury action in the Supreme Court of the State of New York for Rockland County, serving the summons and complaint on defendant Snyder's of Hanover, Inc., a Pennsylvania corporation, on September 6, 2002. The complaint [ Page 2]

alleged that Blanco, "while biting into a pretzel was caused to suffer severe and permanent injuries" through the negligence of the defendant in failing "to properly manufacture, warn and/or inspect the subject product." (Compl. ¶¶ 9, 10, 14.) At a conference before this Court, an attorney for plaintiffs asserted that Blanco had injured a tooth on a pretzel that was too hard. It must have been one heck of a hard pretzel: Blanco and her husband (suing for loss of consortium) demanded a total of $4,250,000 in damages.

On October 22, 2002, defendant responded by filing a petition for removal in the United States District Court for the Eastern District of New York, noting that the parties are citizens of different states and that the plaintiffs' demand for damages exceeded the jurisdictional threshold amount of $75,000. The alert New York reader familiar with federal practice will notice two anomalies: First, Rockland County is not in, nor even particularly near, the Eastern District of New York; and second, the petition was untimely, since 28 U.S.C. § 1446(b) requires that a notice of removal "shall be filed within thirty days" after defendant has been served with a complaint.

Plaintiffs apparently responded to the petition by filing, on November 8, 2002, a document styled an "Affirmation in Opposition" to the removal, pointing out the untimeliness of the removal and seeking remand or, in the alternative, transfer to the Southern District of New York, in which Rockland County actually lies. Subsequently, on December 9, 2002, plaintiffs filed a proper motion to remand the case to state court, citing again the untimeliness of the removal petition and other alleged procedural defects. Of course, unless the earlier "affirmation in opposition" to removal is deemed a motion to remand, the motion filed on December 9 was itself untimely, since a motion to remand on any ground other than lack of jurisdiction must in its [ Page 3]

turn be filed within thirty days of removal. 28 U.S.C. § 1447(c). Failure to move within that time waives non-jurisdictional defects in the removal petition. 14C Wright, Miller and Cooper, Federal Practice and Procedure, § 3739 at 454-56 (3d ed. 1998).

Defendant opposed the remand, asserting that plaintiffs' counsel had already agreed, sometime in November, to stipulate to transfer of the case to the Southern District, but had then duplicitously failed to file the stipulation and instead had filed his motion to remand. Conceding the untimeliness of its removal petition, defendant argued that its lateness in filing should be ignored because plaintiffs' counsel had "unclean hands as . . . he too has filed to follow procedure on two separate occasions making this motion untimely." Affirmation of J. Jay Young, Blanco v. Snyder's of Hanover, Inc., Dkt No. 02 Civ. 5600 (ILG) (E.D.N.Y.) (Dec. 17, 2002).

On January 3, 2003, the Eastern District (I. Leo Glasser. District Judge), no doubt glad to be quit of such bumbling maneuvers, transferred the case to this Court, noting that "[i]n light of this disposition, there is no need for this court to decide the motion to remand." Blanco, slip op. at 2 (E.D.N.Y. Jan. 3, 2003).

Following transfer, this Court held an initial conference on April 16, 2003. Expressing some skepticism about the viability of the plaintiffs' claim, the Court directed expedited and limited discovery by defendant to flesh out the allegations of the complaint, to be completed within sixty days. At the conclusion of the ordered discovery period, a second conference was held, and the Court was informed that plaintiffs had not provided the ordered discovery. A written order was then entered, directing that specific discovery be provided. In its submission in response to plaintiffs' motion to withdraw, defendant maintains that this order was not complied [ Page 4]

with, and that no discovery has yet been provided. Curiously, plaintiffs did not advise the Court at either of these conferences that a motion to remand had been made and not decided, perhaps because, contrary to this Court's individual practice rules, counsel of record for plaintiffs did not deign to appear at either conference, and plaintiffs were represented at the conferences by attorneys unfamiliar with the details of the case.

On July 1, 2003, plaintiffs moved to dismiss the action pursuant to Rule 41(a)(2). Plaintiffs' counsel affirmed that "[b]ased upon a further review of this file, including recent medical records and conversations with the injured plaintiff," he had concluded that the value of the claim "does not exceed the sum of $75,000." (Adams Aff. ¶ 7.) Defendant opposed the motion. Defendant characterized the motion as "nothing more than an attempt to remove the matter back to State Court, in order to avoid recent court ordered discovery" (Funk Aff. ¶ 2); noted that plaintiffs had not actually agreed to reduce the complaint's ad damnum below $75,000; and correctly pointed out that belated reduction of the amount claimed does not deprive the court of jurisdiction. Defendant cross-moved for dismissal with prejudice. In reply papers, plaintiffs agreed to modify the demand for damages. They argue ...

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